Murphy v. Southern Ry. Co.

• Decision Date: 19 January 1900
• Docket Number: 994.
• Citation: 99 F. 469
• Parties: MURPHY v. SOUTHERN RY. CO.
• Court: U.S. District Court — Northern District of Georgia

99 F. 469

MURPHY v. SOUTHERN RY. CO.

No. 994.

United States Circuit Court, N.D. Georgia.

January 19, 1900

Simmons & Corrigan, for plaintiff.

Dorsey Brewster & Howell, for defendant.

NEWMAN District Judge.

This case is now heard on exceptions by both parties to the report of the special master. The usual rule as to the weight to be attached to the report of a master in chancery is that it is presumed to be correct, and that it will not be set aside unless clearly and manifestly erroneous. Additional weight is given such a report when the reference is by consent of parties. In this case, while the order of reference recites that it is by consent of parties, it is claimed (and such is probably the fact) that the consent was with reference to the person selected as special master, and that it was not strictly an agreement to refer. However this may be, it is true that, after it was determined that the case should be referred, counsel were given the opportunity to agree upon a suitable person to act as special master, and selected the Honorable Howard Van Epps, a lawyer of ability and high standing in the profession, and with lengthy experience on the bench. Judge Van Epps heard the evidence in the case, and the record and his report shows great care and painstaking on his part. His findings should not be lightly interfered with. See Walters v. Railroad Co. (C.C.) 69 F. 706; Farrar v. Bernheim, 21 C.C.A. 264, 75 F. 136; Kimberly v. Arms, 129 U.S. 512, 9 Sup.Ct. 355, 32 L.Ed. 764; Davis v. Schwartz, 155 U.S. 631, 15 Sup.Ct. 237, 39 L.Ed. 289.

The first question for consideration is as to what part of what is called the 'D'Alvigny Strip' in the evidence and in the special master's report is owned by Mr Murphy. He claims that the railroad company has taken part of it, and has laid tracks thereon, while the railway company contends that he had no interest whatever in the part taken. In determining this question, it became necessary for the special master to examine deeds running back for some 30 years, and investigate plats, and hear a large amount of oral evidence. He finally decided the case on his construction of the different deeds bearing on this question, and the descriptions contained therein, and determined that the part of the D'Alvigny strip owned by Mr. Murphy did not embrace any of the land upon which the railway company had entered. After going carefully over the special master's report on this subject, I am unable to see any good reason why it should not be sustained. There was evidence locating Mr Murphy's part of this strip further east, so that the tracks of the railroad company would encroach on the same, but the question is peculiarly of the kind where the services of a master in chancery are valuable. He not only had all the documentary evidence before him, but he has seen the witnesses, and has heard them examined and cross-examined; and, having reached a conclusion upon disputed facts, and conflicting evidence, his conclusion should stand.

The other feature of the case, as to which there are exceptions by the complainant, relates to the complainant's right to an easement in what is called the 'East Extension of Gray Street.' In determining this question, it became necessary for the special master to investigate the matter in several aspects. First, there was a question of law, as to whether a certain stipulation in the deed from Ella Loyd to the Schofield Rolling-Mill Company should be construed as a covenant running with the land, or whether it was a dedication of the strip which is called the 'East Extension of Gray Street' to public uses as a street. The special master gave it the former construction but it will not be necessary to determine whether there had been any use of this strip as a street by the public. He held that there had not been. On this subject he says:

'The overwhelming evidence in this case establishes that he had no private way legally established to any such road across the tracks, or that any public road or street existed across those tracks. The evidence conclusively establishes that the north extension of Gray street, north of D'Alvigny street, had never been made a public street, nor had the east extension of Gray Street, to the right of way of the railroad company. It is entirely manifest that nothing but a village or settlement road existed across the railroad tracks at North avenue before it was formally extended, or between North avenue and the east extension of Gray street. The land here was no more than a common, outlying and uninclosed, and existing in a state of nature. The villagers did, indeed, struggle for an outlet across the railroad, and did from time to time pursue first one course then another across this common, but no street or

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